SC restores Imran Khan's right to defend himself in Rs10bn defamation case

ISLAMABAD: The Supreme Court on Thursday, by a majority of two to one, set aside its earlier judgment that had upheld the closure of PTI founder Imran Khan’s right to defend himself in a Rs10 billion defamation suit filed by Prime Minister Shehbaz Sharif.

A three-member bench headed by Justice Ayesha A. Malik and comprising Justice Muhammad Hashim Khan Kakar and Justice Ishtiaq Ibrahim heard review petitions filed by the former prime minister against the court’s December 29, 2022 decision.

In a majority ruling authored by Justice Ishtiaq Ibrahim and supported by Justice Ayesha Malik, the apex court overturned the judgments of the Lahore High Court and the trial court and remanded the case back to the trial court. The court directed that Imran Khan be given a reasonable opportunity to submit replies to interrogatories and that the proceedings continue in accordance with the law.

Justice Hashim Kakar dissented from the majority decision.

The majority judgment emphasized that striking out a party’s defence is an extraordinary and punitive measure that should only be invoked in cases of clear and wilful disobedience.

Justice Ibrahim observed that Order XI Rule 21 of the Civil Procedure Code (CPC), under which Imran Khan’s defence was struck out, effectively serves as the “death knell” of a litigant’s defence and must therefore be applied with utmost caution.

“The law does not favour the forfeiture of a substantive right of defence on a technicality unless the conduct of the party is proven to be contumacious, obstinate and stubbornly defiant,” the judgment stated.

The court further noted that the constitutional guarantee of a fair trial under Article 10A required judges to exercise restraint before depriving a litigant of the right to present a defence.

The majority judgment highlighted that the trial court had previously acknowledged Imran Khan’s inability to respond to court interrogatories due to injuries sustained in the assassination attempt during a political rally in November 2022.

Justice Ibrahim observed that once the trial court accepted the medical circumstances arising from the shooting incident, the element of wilful non-compliance no longer existed.

“When a party is hospitalised due to gunshot wounds, failure to sign an affidavit or consult with counsel is a physical impossibility and not a deliberate act of defiance,” the judgment noted.

The court held that the trial court had acted mechanically by imposing the harshest possible penalty despite the existence of documented medical incapacity and without first considering less severe alternatives such as costs or strict deadlines.

Justice Ayesha Malik, in a separate note, agreed that although the case had suffered years of delays, the circumstances surrounding the assassination attempt justified a reasonable adjournment.

In his dissenting opinion, Justice Muhammad Hashim Khan Kakar argued that the case reflected a consistent pattern of delays on the part of the petitioner.

He noted that the defamation suit had been pending since 2017 and that the written statement was filed after a delay of approximately four years. He further observed that despite receiving multiple opportunities, Imran Khan had failed to answer the interrogatories submitted by the plaintiff.

Justice Kakar stated that court records showed answers to the interrogatories had been prepared but were not submitted, while additional objections were later filed, contributing to further delays in the proceedings.

He concluded that the petitioner’s conduct amounted to willful non-compliance and that the trial court had acted within its authority in striking out the defence.

The defamation suit was filed by Prime Minister Shehbaz Sharif in 2017 after Imran Khan alleged that he had been offered Rs10 billion through an intermediary to withdraw the Panama Papers case. Shehbaz Sharif termed the allegation defamatory and sought Rs10 billion in damages.